Bruckner by the Bridge LLC v J.M.

[*1] Bruckner by the Bridge LLC v J.M. 2020 NY Slip Op 50872(U) Decided on June 29, 2020 Civil Court Of The City Of New York, Bronx County Lutwak, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2020
Civil Court of the City of New York, Bronx County

Bruckner by the Bridge LLC, Petitioner (Landlord)

against

J.M., Respondent (Tenant) and John Doe and/or Jane Doe Respondents (Undertenants).



48868/2019



Attorney for Petitioner:
Waide Law Offices PLLC
87-14 116th St, Richmond Hill, NY 11418
(718) 412-3785

Attorney for Respondent:
Liana Goff, Esq., The Bronx Defenders
360 East 161st St, Bronx, NY 10451
(347) 842-1472


Diane E. Lutwak, J.

Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent's Motion to Dismiss and for other relief:

Papers Numbered
Notice of Motion, Supporting Affirmation, Affidavit & Exhibits A-F 1, 2, 3, 4-9
Memorandum of Law in Support of Motion10
Affirmation in Opposition & Exhibits A-E11, 12-16
Reply Memorandum of Law17

In this nuisance holdover proceeding petitioner-landlord Bruckner by the Bridge LLC seeks to evict Rent Stabilized respondent-tenant J.M. based on allegations of objectionable conduct. The petition was predicated on, and incorporates by reference, a termination notice which asserts that petitioner's management company has received complaints from other tenants and building staff about respondent "and/or" his "guests/occupants" both "on a constant weekly basis" and "on a daily and continuous basis" beginning January 1, 2019. The behavior complained of includes "harassing other residents"; "being verbally abusive"; "destroy[ing] the landlord's property; "engaging in profane and violent/destructive behavior" and "unacceptable behavior around residents['] children"; "walking naked in the common areas and hallways"; "threatening other residents, staff and occupants with physical violence"; "creating a hostile place"; "pos[ing] a serious threat to the health, safety and welfare" of other residents and their children; loitering and smoking cigarettes in the common areas; and allowing "large numbers of people" to enter and exit the apartment at all hours of the day and night on a daily basis. In addition, the termination notice describes an incident on September 26, 2019 in which respondent-tenant was arrested after a fight with another resident who was then taken to the hospital.

Respondent-tenant moves pre-answer to dismiss under CPLR R 3211(a)(7) claiming the predicate termination notice is fatally defective as it mentions only one specific incident and otherwise is impermissibly vague. In opposition, petitioner argues that the predicate notice adequately informs respondent-tenant of the objectionable conduct underlying the nuisance claim and the proceeding should be allowed to move forward.

DISCUSSION

Section 2524.3(b) of the New York City Rent Stabilization Code ("RSC") authorizes a landlord to bring a holdover eviction proceeding against a Rent Stabilized tenant, after service of the predicate notice required by RSC § 2524.2, who is alleged to have committed or permitted a nuisance. Sharp v Norwood (89 NY2d 1068, 1069, 681 NE2d 1280, 1281, 659 NYS2d 834, 835 [1997]). A nuisance is a continuous or recurring pattern of objectionable conduct that interferes with others' occupancy, use and enjoyment of their homes. Domen Holding Co v Aranovich (1 NY3d 117, 123-24, 802 NE2d 135, 139, 769 NYS2d 785, 789 [2003]); Frank v Park Summit Realty Corp (175 AD2d 33, 35, 573 NYS2d 655, 657 [1st Dep't 1991]).

The predicate notice required by RSC § 2524.2 must state both (1) "the ground under section 2524.3 or 2524.4 upon which the owner relies for removal or eviction of the tenant" and (2) "the facts necessary to establish the existence of such ground". Berkeley Assoc Co v Camlakides (173 AD2d 193, 569 NYS2d 629 [1st Dep't], aff'd, 578 NYS2d 872, 78 NY2d 1098, 586 NE2d 55 [1991]). Case-specific facts must be included in such a predicate notice, and a holdover proceeding based on a notice that is too generic and conclusory is subject to dismissal.[*2]Otherwise, "for all practical purposes, [it would] eviscerate the plain language of the governing notice regulation and undermine its salutary purpose to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts." London Terrace Gardens, LP v Heller (40 Misc 3d 135[A], 975 NYS2d 710 [AT 1st Dep't 2009])(upholding lower court's dismissal of nonprimary residence holdover proceeding against Rent Controlled tenant, under a regulation with essentially identical language to the Rent Stabilization Code's parallel provision).

New York State courts evaluate the sufficiency of predicate notices based on a standard of reasonableness "in view of all attendant circumstances". Oxford Towers Co, LLC v Leites (41 AD3d 144, 837 NYS2d 131 [1st Dep't 2007]); Hughes v Lenox Hill Hospital (226 AD2d 4, 17, 651 NYS2d 418, 427 [1st Dep't 1996], app dism'd, 90 NY2d 829, 683 NE2d 17, 660 NYS2d 552 [1997]). The notice must "provide the necessary additional information to enable the tenant respondent to frame a defense to meet the tests of reasonableness and due process." Jewish Theological Seminary of America v Fitzer (258 AD2d 337, 338, 685 NYS2d 215 [1st Dep't 1999]). While a predicate notice "need not lay bare a landlord's trial proof", McGoldrick v DeCruz (195 Misc 2d 414, 758 NYS2d 756 [AT 1st Dep't 2003]), broad, unparticularized allegations that are too vague and conclusory to enable the tenant to prepare a defense are insufficient, 128 Second Realty LLC v Dobrowolski (51 Misc 3d 147[A],1 NYS3d 450 [AT 1st Dep't 2016]); 69 E M LLC v Mejia (49 Misc 3d 152[A], 29 NYS3d 849 [AT 1st Dep't 2015]).

As a predicate to a nuisance holdover, a notice that "includes names, dates, a description of the misconduct and police complaint numbers" and which further alleges that the objectionable conduct was not limited to the instances listed may withstand a motion to dismiss. Domen Holding Co v Aranovich (1 NY3d at 124-25, 802 NE2d at 139-40, 769 NYS2d at 789-90). Three such incidents over a five-year period may be sufficient depending upon "their severity and the circumstances under which they allegedly took place," Domen Holding, supra, whereas an allegation of only a single instance of objectionable conduct has been found insufficient to constitute the type of "repeated objectionable behavior as the nuisance standard requires," 40 W 75th St LLC v Horowitz (25 Misc 3d 1230[A], 906 NYS2d 772 [Civ Ct NY Co 2009]). Thus, there is no bright-line rule as to the number of incidents required to be listed in such a predicate notice, 772 E 168 St LLC v Holmes (61 Misc 3d 1206[A], 110 NYS3d 798 [Civ Ct Bx Co 2018]) and cases cited therein, and dates and times of those incidents are not required in every case, Pinehurst Constr Corp v Schlesinger (38 AD3d 474, 833 NYS2d 428 [1st Dep't 2007]); Lenox Realty Co v Babel (19 Misc 3d 1145[A], 867 NYS2d 21 [Civ Ct Kings Co 2008]).

On a motion to dismiss under CPLR R 3211(a)(7) the pleading is to be afforded a liberal construction, its allegations are accepted as true, landlords are accorded the benefit of every possible favorable inference and the court determines "only whether the facts as alleged fit within any cognizable legal theory". Leon v Martinez (84 NY2d 83, 87-88, 638 NE2d 511, 614 NYS2d 972 [1994]). However, an adequate predicate notice is a required condition precedent to a holdover eviction proceeding and if it is insufficient the proceeding must be dismissed. Chinatown Apts Inc v Chu Cho Lam (51 NY2d 786, 412 NE2d 1312, 433 NYS2d 86 [1980]); Jewish Theological Seminary of America v Fitzer; supra; London Terrace Gardens, LP v Heller (40 Misc 3d 135[A], 975 NYS2d 710 [AT 1st Dep't 2009])(the facts in the predicate notice must [*3]be pleaded with sufficient specificity so as "to discourage baseless eviction claims founded upon speculation and surmise, rather than concrete facts"); Carriage Court Inn, Inc v Rains (138 Misc 2d 444, 524 NYS2d 647 [Civ Ct NY Co 1988])(granting motion to dismiss holdover petition based upon a vague notice of termination, which may not be amended to operate retroactively).

Here, only one incident - involving a "physical altercation" with a neighbor on September 26, 2019 - is plead with any specificity. Other than this, the other allegedly objectionable behaviors for the most part are plead in a conclusory manner, using non-particularized phrases such as "harassing other residents", "being verbally abusive", "engaging in profane violent/destructive unacceptable behavior", "threatening other residents, staff and occupants with physical violence", "destroyed public property", "large numbers of people entering and exiting the apartment at all hours of the day and night on a daily basis", and "creating a hostile place". The more specific conduct — "walking naked in the common areas", "loitering" and "smoking cigarettes" in common areas - is articulated without any names, dates or other descriptive details. The notice also is vague as to who engaged in most of the alleged conduct, as it asserts that the complaints received by petitioner's management company were regarding "you and/or your guests/occupants". Further, the notice contains contradictory language as to how often petitioner received complaints about respondent-tenant, alleging both "on a constant weekly basis" and "on a daily and continuous basis". Overall, the allegations in the notice are plead so broadly that they fail to satisfy the specificity requirement of the Rent Stabilization Code; respondent-tenant cannot reasonably be expected to frame a defense.[FN1] 128 Second Realty LLC v Dobrowolski, supra; 69 E M LLC v Mejia, supra.

CONCLUSION

Accordingly, respondent-tenant's motion to dismiss under CPLR R 3211(a)(7) for failure to state a cause of action is granted and the proceeding is dismissed without prejudice. This constitutes the Court's Decision and Order, copies of which are being emailed to the parties' respective counsel.

_________________________
Diane E. Lutwak, HCJ
Dated: Bronx, New York
June 29, 2020 Footnotes

Footnote 1: Nor is this a case in which the pleading defects can be remedied by a demand for a bill of particulars. See Pinehurst Constr Corp v Schlesinger, supra; City of New York v Valera (216 AD2d 237, 238, 628 NYS2d 695 [1st Dep't 1995]). As noted in petitioner's opposition papers on this motion, respondent-tenant already did serve such a demand; however, in its response to that demand which was filed with the court petitioner objected to each item demanded and provided no amplification of the pleadings.